The application of Regulation 44A

23 August 2018

When section 15A of the Deeds Registries Act (DRA) Act 47 of 1937 came into operation in 1982 it caused a revolution in the deeds registries as regards the examination of deeds. Or it should have. Somehow the “old hands” still wanted everything proved by means of certificates or other documentation. Old habits die hard, especially in the deeds office! Younger examiners were taught that such proof of every fact was not necessary due to section 15A and regulation 44A of DRA, yet very soon lapsed into an old style of examination style due to the old hands’ influence – prove everything please! I can only speak for what we experience in the Cape Town deeds office, but I am convinced that similar practices or others that are in conflict with section 15A(3) of DRA exist in other deeds offices.

Section 4(1)(a) of DRA is very much to blame for this problem, due, in my view, to a complete misunderstanding of the subsection and the powers it affords the registrar. Section 4(1)(a) provides:

“(1) Each registrar shall have power –

(a) To require the production of proof upon affidavit or otherwise of any fact necessary to be established in connection with any matter or thing to be performed or effected in his registry...” (my bolding)

One needs to look at this section against the background of section 15A of DRA and its effect on the proof that may be called for in terms of section 4(1)(a) of DRA, if any, and if in fact such evidence may be called for by the registrar (or what in practice is in fact the examiners). Most, if not all, examiners see section 4(1)(a) of DRA as a sort of “cover all” – that it allows them to call for whatever proof of any fact they may require or think they require. Looking at my bolding above it is necessary to understand clearly what the words “…necessary to be established….” imply exactly within the confines of deeds registration and DRA.

Bear in mind that a Registrar of Deeds is a creature of statute and derives his powers and duties from statute. Unless a Registrar is given a discretion he has to act within the limitations of the statute. Regulation 41(1) of DRA for example provides the Registrar with a discretion, namely “Where it is sought to mortgage land under special conditions limiting the rights of the owner the Registrar may (my bolding) require those conditions to be set out in the bond (my bolding) or a suitable reference made thereto”. In other words, he will not necessarily require reference to the conditions and he may require such reference to be made in the bond, not the power of attorney. So often a note is raised to also include such conditions to be included in the power of attorney, which is not within the Registrar’s discretion afforded him by the regulation.

Section 15A(1) of DRA provides inter alia:

“(1) A conveyancer who ….signs a prescribed certificate on such deed or document, accepts by virtue of such signing (my bolding) the responsibility, to the extent prescribed by regulation for the purposes of this section, for the accuracy of those facts mentioned in such deed or document or which are relevant in connection with the registration or filing thereof, which are prescribed by regulation”.

Which regulation is the section referring to? Clearly it refers to regulation 44A of DRA. Regulation 44A of DRA sets out exactly which responsibilities are accepted and borne by the conveyancer who signs the certificate prescribed by regulation 43 of DRA or by the person who signs the certificate prescribed by regulation 44 (prep clauses). Section 15A (3) of DRA then provides as follows:

“ A registrar shall accept, during the course of his examination of a deed or other document in accordance with the provisions of this Act, that the facts referred to in subsection (1) in connection with the registration or filing of a deed or other document in respect of which a certificate referred to in subsection (1)……has been signed, have for the purposes of such examination been conclusively proved …”.

The effect of these various provisions is therefor that the examiners cannot call for proof of facts that are set out in regulation 44A of DRA as those facts are deemed to be conclusively proved as provided for in section 15A(3) of DRA. Section 4(1)(a) of DRA cannot be used to override these provisions. Section 4(1)(a) of DRA does not provide the carte blanche for examiners to call for whatever proof of facts they consider necessary. That powers of the Registrar are severely limited by the provisions of section 15A of DRA. The discretion to call for proof of the facts mentioned in regulation 44A was effectively taken away from the Registrar when section 15A of DRA came into operation unless of course blatant errors are detected.

In at least Cape Town deeds office a time consuming practice for conveyancers has evolved from an unnecessary note which is raised lately and which is contra the provisions of section 15A and regulation 44A of DRA. The note goes something like: “Where is ANC registered?” or “Certify ANC is registered”. Examiners who make this note then view a reply to such a note referring them to section 15A and regulation 44A of DRA as “sarcastic”. Far from it – it is a valid answer to an unnecessary note. The note is even raised when persons married out of community of property and reflected as such in a registered title pass a bond or transfer the land, and are still being described as such. There exists an old unwritten rule “do not doubt registration”. (examiners and those conveyancers who own the Deed Manuals – see page 1-17 and 1-18 in the manual). And it is clearly not a fact that needs to be proved as envisaged in section 4(1)(a) of DRA. Regulation 19 of DRA is most certainly not available for justifying this note.

Regulation 19 of DRA reads:

19. A Registrar shall have authority in connection with any deed or document tendered for execution, registration or record to call for evidence to establish the identity or non-identity of any party thereto with any person whose name appears in any register kept in his Registry.

This has nothing to do with marital status and is not available to justify a note about the registration of people’s ANC.

Another note raised, especially in the case of subdivisions and townships established on consolidated land, is that the conveyancer is requested to certify in which component in the title deed the portion or erf falls. This is pure rubbish – the examiner must still peruse the conditions and make sure what applies and what not (see manual page 1-19). The examiner must plot where the various properties or components are situated. The conveyancer has already signed the prep clause to confirm that he is satisfied with which conditions apply. If the examiner finds an error with the conditions, then he/she should raise a note and state what is wrong.

The point is that section 15A and regulation 44A of DRA were promulgated to relieve the Registrars of Deeds of certain responsibilities. Examiners should keep that in mind when examining deeds – they should not overstep the boundaries of the powers given to the Registrar.

The problems in this regard are, however, compounded by conveyancers who simply comply with such notes. In fact, with any note, even blatantly incorrect ones! Yes, take the easy way out because clients want their money and you need to register - all of that is true – but that leaves the way open for rubbish practices to become established and which are then almost impossible to get rid of.

I totally agree with Dudley. I had a situation where there was a clause in the title deed stating that the transferees would automatically become members of a HOA. There was NO REFERENCE TO A CONSENT BEING REQUIRED in the clause. I was merely doing a further bond. I was rejected twice even though I certified that they were members by virtue of the fact that they owned the property (in that case) and it was common cause that the transferee would automatically become a member on registration if I was doing a transfer. In the end I had to obtain the consent of all the MEMBERS/OWNERS (11 of them) before the bond was passed.